( 1. ) A Division Bench of this Court vide order dated 16. 10. 2006 in this Misc. Appeal No. 2228/2003 (Smt. Ramlali Tiwari and another Vs. Vrihdavan tiwari and another) has referred following question of law for consideration by a larger Bench :-

"whether in a claim ease when the claimant filed an application under section 166 of the Act, contested the case on merits and after dismissal of the claim petition on merits, in appeal the claimant may be permitted to convert his application under section 163-A of the Act. "

( 2. ) THE Division Bench found that another Division Bench of this Court in Smt. Mayabai Tomar and others Vs. Sheikh Rasheed and others M. A. No-1462/1999 dated 24. 2. 2005 reported in [2005 (II) MPWN Note 21] had indirectly permitted claimant to convert his application from section 166 to section 163-A of the Motor vehicles Act, 1988 (hereinafter referred to as act for short) while in view of law laid down by the Apex Court in Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd. , Baroda [ (2004)5 SCC 385] = (2004 AIR SCW 1464) such recourse was not available to the claimant.

( 3. ) LEARNED counsel for claimants submitted that there is no specific bar in the act prohibiting such conversion. Section 163-A of the Act was introduced by the parliament by amendment (54 of 1994) w. e. f. 14. 11. 1994 as it was a subsequent amendment after coming into force of the Act w. e. f. 1. 7. 1989. The permission as sought by the appellants/claimants ought to have been granted and the judgment of Smt. Mayabai Tomar is in accordance with law. It was further submitted that the Full Bench of Karnataka High Court in Guruanna Vadi and another Vs. General Manager, Karnataka State Road Transport Corporation and another (2001 ACJ 1528) has specifically held that an application filed under section 166 of the Act may be converted into an application under section 163-A of the Act. He had also relied on Division Bench judgment of Andhra Pradesh High Court in kore Laxmi and others Vs. United India Insurance Co. Ltd. , and others (2005 acj 543) and a Single Bench judgment of Gujarat High Court in Narshiji Nagaji majirana Vs. Mangilal Amturam Bishnoi and others (2005 ACJ 19 ).

( 4. ) SHRI S. K. Rao, learned Sr. Adv. , appearing on behalf of respondent submitted that in view of the specific provision in section 163b of the Act such recourse was not permissible. The statute itself specifically provides that a person would be entitled to claim compensation under section 140 and 163-A, but he should file the claim under either of the sections and not under both, so the claimants before filing of application ought to had chosen the provision under which claimants were claiming compensation. After a decision in the claim petition on merits, rejecting an application under section 166 of the Act, in appeal such permission cannot be allowed to convert the claim petition under section 163-A of the Act. Reliance was placed to the Apex Court judgment in Deepal Girishbhai (supra ).

( 5. ) IN this case the question of law referred by the Division Bench is very specific and we have to examine whether after dismissal of application under section 166 of the Act, which was contested on merits before the trial Court, in appeal the claimant may be permitted to convert his application under section 163-A of the Act. The claimants who were wife and son of Late Ashrafilal Tiwari filed their claim petition under section 166 of the Act claiming Rs. 25,20,000/- as compensation. The husband of appellant no. 1 Ashrafilal was an Accountant in the office of Commissioner Tribal Welfare Department, Bhopal and was posted at Shahdol. He was drawing Rs. 6,660/- salary and at the time of death he was 35 years old. On 30. 11. 2001 the date on which accident occurred he was in the village. The father of the deceased purchased a tractor just few days before the death of deceased and asked the deceased to help in agricultural work on an assurance that he sh